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Some British Opinions as to Neutral Rights,1861 to 1865

Published online by Cambridge University Press:  04 May 2017

James P. Baxter
James P. Baxter*
Affiliation:
Harvard University
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Extract

In the controversy between Great Britain and the United States as to neutral rights from 1914 to 1917, both governments appealed again and again to precedents of the American Civil War. British prize courts as well as British diplomats made effective use of the Civil War decisions. Indeed, Professor A. Pearce Higgins has recently gone so far as to assert that, if one views the decisions as a whole, there was no greater extension of the principles of international law by the decisions of British prize courts during the World War than in the American cases.

Type
Research Article
Information
American Journal of International Law , Volume 23 , Issue 3 , July 1929 , pp. 517 - 537
Copyright
Copyright © American Society of International Law 1929

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References

1 In his introductory chapter in Colombos, C. John & A Treatise on the Law of Prize, xiv. (1926)Google Scholar.Among the references to Civil War cases, see Diplomatic Correspondence with Belligerent Governments Relating to Neutral Rights, Washington, 1915-1918, hereafter cited as American White Book, No. 1, pp. 47, 48, 59; No. 2, pp. 179-180; No. 3,pp. 25-35, 63, 69, 72-73, 76, 79, 82-84, 136-139, 140, 154; No. 4, pp. 57, 92; and the Kim,1 British and Colonial Prize Cases, pp. 412, 415-417, 422, 425, 426, 459-460, 478-479, 481-482,486, 488, 491.

2 See the writer's article, “ The British Government and Neutral Rights, 1861 to 1865,” and accompanying documents, in the American Historical Review, October, 1928. These documents form part of a collection made with the aid of a grant from the Bureau of International Research of Harvard University and RadcIifSe College, and were photostated or transcribed by Mrs. V. Heddon, of the Admiralty Library, London. Permission to use the opinions of the Law Officers of the Crown was obtained through the kind intervention of William Perrin, Esq., O. B. E., the Librarian of the Admiralty.

3 Dictionary of National Biography, s. v., Atherton, Bethell, Collier, Palmer, and Phillimore. For the procedure followed in submitting questions to the Law Officers, see Selborne, Memorials, Part I, Vol. II, pp. 377-381. Until Phillimore's appointment in 1862, the Queen's Advocate had precedence over the Attorney and Solicitor-General. Ibid., p. 378. In September, 1862, Travers Twiss succeeded Phillimore as Admiralty Advocate. Adm. 3/270.

4 Massachusetts Historical Society Proceedings, Vol. XLV, p. 92. Adams to Motley,Dec. 4, 1861.

5 Cf. the writer's article in the American Historical Review, cited above.

6 Adm. 1/5871. P. 132. Milne's memoranda of March 15, 1864, for his successor,Admiral Sir James Hope. The capital “ P ” in this and other citations does not stand for “page”but for the words “ North America and West Indies station” in the Admiralty key.Letters to and from the Secretary to the Admiralty will be cited as “ to Admiralty”and“ Admiralty to Milne” et ol.

7 In the present article, the material is arranged topically, in the order in which the subjects dealt with are treated in Moore's Digest of International Law.

8 Adm. 1/5787. P. 355.

9 Parliamentary Papers, 1863, Vol. LXXII, North America, No. 5, pp. 1-4. Official Records of the Union and Confederate Navies, Series I, Vol. I, pp. 417-418. Hereafter cited as O. R. N.

10 The asterisk in the original refers to the following footnote: “ See ʻThe Atalanta,ʼ 6 C Robinson's Admiralty Reports, 440; ʻThe Caroline/ ibid., 461; Hautefeuille, ʻ Des Droits et des Devoirs des Nations Neutres en Temps de Guerre Maritime,ʼ vol. ii, pp. 462, 470; Wheaton's Elements/ sixth edition, p. 567 (Note A).

The opinions of Nov. 12th and 28th are printed in full in the document section of the American Historical Review for October, 1928, from photostats of the copies printed for the use of the Cabinet, Nov. 28 and 29, 1861, preserved in Adm. 1/5768.

11 Cf. North America, No. 5 (1862), pp. 2-3. Russell to Lyons, Nov. 30, 1861. A comparison of the opinions of Nov. 12th and 28th shows that the Law Officers did not change their opinion as to the legality of the removal of Mason and Slidell without capturing the Trent, after the arrival of the news, as has been alleged by various writers on the strength of a letter from Palmerston to Delane, Nov. 11, first published in Dasent's Life of Delane in 1908. See the writer's article in the American Historical Review for October, 1928.

12 North America, No. 5 (1862), p. 23.

13 Adm. 1/5798.

14 Adm. 1/5798. Romaine to Hammond, Jan. 16th, with draft of letter to Port Admirals.

15 Adm. 1/5798. Hammond to Romaine, Jan. 17th. Private.

16 North America, No. 5 (1862), p. 37. Cf. Selbome, Memorials, Part I, Vol. II, pp. 392-394; Massachusetts Historical Society Proceedings, Vol. XLV, pp. 137-138. Argyll to Adams, Jan. 25, 1862.

17 Adm. 13/31. No. 47 M.

18 Adm. 1/5788. P. 867. Milne to Captain Glasse, Dec. 5, 1862. Confidential. Copy transmitted by Milne to Admiralty, Dec. 27. No. 996.

19 Adm. 1/5832. Feb. 2, 1863.

20 10 Papers Relating to Foreign Affairs, 1863, Part I, pp. 465-467. Wilkes denied the report. Ibid., p. 502.

21 21 O. R. N., Series I, Vol. I, p. 418. Cf. Diary of Gideon Welles, Vol. I, pp. 74, 79-80, 82

22 North America, No. 10 (1863). Russell to Stuart, Oct. 10, 1862.

23 North America, No. 5 (1863), p. 5.

24 North America, No. 5 (1863), pp. 5-6.

25 Welles, Lincoln and Seward, pp. 92-94. Welles to Seward, April 13, 1863.

26 Papers Relating to Foreign Affairs, 1863, I, pp. 496-497, 505-506.

27 Welles, Lincoln and Seward, 85-122. See especially Welles to Seward, April 13 and 18.See also Moore, Digest, Vol. VII, pp. 481-484. Seward to Welles, April 15 and 20. Navy Department, Executive Letters, April, 1863. Seward to Welles, April 11, 14 and 18. Navy Department, Executive Letter Book No. 16. Welles to Seward, April 27, 1863. Diary of Gideon Welles, Vol. I, pp. 180-181, 266-267, 269-272, 273-276, 277-287, 288-290,299-301, 302-304, 306, 310, 315, 335.

28 Welles, Lincoln and Seward, p. 99.

29 Welles, Lincoln and Seward, pp. 100-115. April 25, 1863.

30 Welles, however, cited The Two Brothers (1C. Rob. 131); The Romeo (6 C. Rob. 351);The Atalanta (6 C. Rob. 440); and The Caroline (6 C. Rob. 461). Lincoln and Seward,pp. 102-103.

31 The public mails of this vessel, captured on a voyage from Liverpool by the way of Bermuda to Nassau, had been committed to the custody of the prize court at Key West. Seward stated that it was subsequently reported to the Department by the United States Consul at Leeds, in England that there was reason to believe a vessel answering her description had taken mails for the purpose of screening her true destination or the character of her cargo, and that the custodian of the papers at Key West had been bribed to deliver up such of them as would be likely to lead to her condemnation. Commodore Lardner, commanding the Eastern Gulf Squadron, reported to Welles that Great exertions were made by the British authorities in the West Indies to obtain the mails found in the Adela.

32 State Department, Report Book No. 8, pp. 358-361. Seward to Lincoln, April 24, 1861. The latter portion of this report is printed in the document section of the American Historical Review for October, 1928.

33 Diary of Gideon Welles , Vol. I, pp. 274-275, 285-289, 290, 301, 304.

34 Ibid., pp. 286-287.

35 Papers Relating to Foreign Affairs, 1863,1, p. 510.

36 The Steamer Peterhoff and Cargo, Blatchford's Prize Cases, pp. 463-550, at p. 468.

37 Moore,, & Digest, A Treatise on the Law of Prize, VII Cf. Papers Relating to Foreign Affairs 483 484.(1863)Google Scholarp. 221. Seward to Adams, April 21, 1863.

38 Lawrence, T. J. & A Treatise on the Law of Prize, War and Neutrality in the Far East, 2d ed., 189. (1904,)Google Scholar. For discussions in Parliament as to the mails of the Peterhoff see Hansard, 3rd Series, Vol.CLXX, pp. 560-572, 653-658, 763-767, 980-981, 995, 1153-1154. Cf. Selborne, Memorials,Part I, Vol. II, pp. 394-399. For the controversy during the World War, see American White Book, No. 3, pp. 145-156; No. 4, pp. 53-59.

39 Moore, Cf. & Digest, A Treatise on the Law of Prize, VII, 491 493(1926)Google Scholar. Naval War College. International Law Situations, 1911, pp. 37-50; Colombos, Law of Prize, pp. 256-258.

40 Adm. 1/5819. P. 312. Milne to Admiralty, May 23, 1863, enclosing copy of Milne to Commodore Cracroft, May 21.The admiral cited Lord Stowell's decision in the case of The Maria (1 C. Rob. 340), from Hazlitt and Roche, Manual of the Law of Maritime Warfare, London, 1854, p. 275. Milne expressed similar views to Crawford, the British Acting Consul General in Cuba, pointing out that a fair trader ought not to require convoy, “while the fraudulent trader can have no claim to it at our hands.” Adm. 1/5819. P. 312. Cf. O. R. N., Series I, Vol. II, p. 147; and Hansard, 3rd Series, Vol. CLXXI, pp. 874-878.

41 Adm. 1/5872. P. 269. Milne wrote to Lyons on May 23rd that “in the present state of our Relations with the United States, it would be highly undesirable to provoke by any act on our part, a discussion on so controverted a question of international law as that of the right of convoy by neutrals.” Copy in Adm. 1/5819. P. 312. Milnes views on convoy were approved by Lyons, by the Admiralty, and by the Foreign Office. Adm. 1/5851. Foreign Office letter of June 30, 1863, with copy of Lyons to Russell, June 12, 1863. Cf. Adm. 12/733. Digest entries of Admiralty minute of Aug. 3,1863, and of Foreign Office letter of Aug. 8, 1863. See also Adm. 1/5871. P. 132. Milnes memoranda for Sir James Hope, March 15, 1864.

42 Papers Relating to Foreign Affairs, 1862,1, p. 229; 1863, I, pp. 418-419, 432-433, 435436, 444, 445, 446, 453, 454-455, 456, 462-463, 522, 528, 543, 546-548, 549-550, 565, 581

43 Adm. 1/5768. Quoted in the Law Officers' opinion of Nov. 12, 1861.

44 Adm. 1/5798. Draft of letter to Port Admirals, enclosed in Romaine to Hammond,Jan. 16, 1862.

45 Adm. 1/5852. Copy enclosed in Hammond to Admiralty, Oct. 30, Nov. 4, 1863. Cf. North America, No. 6 (1864), p. 18. Newcastle to Wodehouse, Nov. 4, 1863. See also Appendix to British Case, Geneva Arbitration, Vol. II, p. 54. Law Officers to Russell, Jan. 5, 1863. On Jan. 14, 1863, Russell observed to Lyons that “ the high seas must be considered as beginning at the distance of 3 miles from the shore.” Adm. 1/5850. Copy enclosed in Hammond to Admiralty, Jan. 24, 1863.

46 Adm. 1/5788. P. 624. Milne to Admiralty, Aug. 14, 1862, enclosing copy of Milne to Hickley, Aug. 8. Adm. 13/31. No. 47 M. Romaine to Milne, Jan. 18,1862. Adm. 1/5872. P. 269. Milne to Senior Naval Officer, Nassau, Aug. 8,1862, circulated Oct. 13, 1862.

47 Adm. 1/5799. Quoted in Hammond to Admiralty, Oct. 10, 1862.For a summary of the decisions of British courts on this subject in the middle of the nineteenth century, see the important article of Baty, Dr. Thomas & Digest, “ The Three-Mile Limit,”,on in this Journal XXII, 503 521(1926)Google Scholar.

48 Adm. 1/5788. P. 731. Milne to Admiralty, Oct. 16,1862. Welles wished to challenge British jurisdiction over such “ uninhabited, barren spots” as Sand Key. Diary, Vol. I,pp. 416-427. See, however, Papers Relating to Foreign Affairs, 1863, I, p. 435.

49 Adm. 1/5799. Law Officers to Russell, Oct. 31, 1862. Copy enclosed in Hammond to Admiralty, Nov. 1st.

50 Adm. 1/5799. Separate minute dated Nov. 10, 1862, with letter of Hammond to Admiralty, Nov. 7, 1862.

51 Adm. 1/5799. Law Officers to Russell, Dec. 3, 1862. Copy enclosed in Hammond to Admiralty, Dec. 11th.

52 Papers Relating to Foreign Affairs, 1863,1, pp. 581, 624, 625, 626; 1864,1, pp. 779, 784,787-800, 811-816; II, pp. 412-450, 494-496, 563-564, 575-576, 639.

53 Ibid., 1864, II, pp. 704-705. Burnley to Seward, Sept. 10, 1864.

54 Ibid., pp. 706, 708-709. Seward to Burnley, Sept. 15 and 16,1864.

55 This Journal , Vol. XXII, p. 522.

56 Cf. the French objections to the Kearsarge engaging the Alabama close to the three-mile limit. Papers Relating to Foreign Affairs, 1864, III, pp. 104-105, 120-121.

57 Adm. 1/5799. Hammond to Admiralty, Nov. 15, 1862, with copies of Inman to Russell, Nov. 5, and Hammond to Inman, Nov. 13.

58 Here Russell cited The Felicity (2 Dodson, p. 386), and The Actaeon (ibid., p. 48).

59 Adm. 1/5799. Russell to Stuart, Nov. 15. Copy in Hammond to Admiralty, Nov. 15, 1862.

60 London Times, Dec. 2, 1862. Hammond to Thomas Chilton, President of the Liverpool Chamber of Commerce, Nov. 29, 1862. Cf. O. R. N., Series II, Vol. I l l, pp. 618-619, 714, 720, 841-845, 933; Raphael Semmes, Service Afloat, pp. 554r-555.

61 0. R. N., Series I, Vol. II, pp. 581, 591, 792; Semmes, Service Afloat, pp. 715-719.

62 Adm. 1/5872. P. 213; Adm. 1/5873. P. 340; Adm. 1/5922. P. 11. Hope to Admiralty,May 2, June 30, 1864; Jan. 9, 1865.

63 O. R. N., Series I, Vol. I l l , pp. 616-617.

64 Adm. 1/5872. Law Officers to Russell, June 1, 1864. Copy in Admiralty to Hope, June 1, No. 236 M. For Russell's adoption of these views, see Adm. 1/5902. Hammond to Admiralty, June 1,1864. Cf. Adm. 1/5903. Law Officers to Russell, Aug. 12,1864. Copy in Hammond to Admiralty, Sept. 6th.

65 Adm. 13/35. Admiralty to Hope, June 1, No. 236 M., and June 9, No. 250 M.; Adm. 1/5922. P. 11. Hope to Glasse, June 30, 1864. Copy in Hope to Admiralty, Jan. 9, 1865.Cf. Adm. 1/5903. Report of Admiral Sir Frederick Grey on letter of Hammond to Admiralty, Dec. 13, 1864.

66 Adm. 1 /5873. P. 502. Hope to Admiralty, Nov. 24, 1864, enclosing copy of Wilkinson to Glasse, Nov. 11th.

67 See Moore, & Digest, “ The Three-Mile Limit,”,on in this Journal VII, 535 558and E. D. Adams, Great Britain and the American Civil War, Vol. I, Chs. I l l and V.(1926)Google Scholar.

68 Adm. 1/5768. Law Officers to Russell, Oct. 5,1861. Copy in Hammond to Admiralty, Nov. 19. Cf. Appendix to the British Case, Geneva Arbitration, Vol. II, p. 2; Adm. 1/5768. Law Officers to Russell, Nov. 18, 1861, enclosed in Hammond to Admiralty, Dec. 16th.

69 Adm. 1/5759. P. 237. Printed in the document section of the American Historical Review, October, 1928.

70 Russell thought that it was “ quite right to anticipate piratical acts and outrages, and to put them down, if they should occur, with a strong hand.” Adm. 1/5767. Hammond to Admiralty, June 14, 1861.

71 Adm. 1/5799. Layard to Admiralty, July 31, 1862.

72 Adm. 1/5872. P. 269

73 Statutes at Large, Vol. XII, p. 758.

74 See the closing pages of the writer's article, “ The British Government and Neutral Rights, 1861 to 1865,” in the American Historical Review, October, 1928.

75 Adm. 1/5850. Russell to Lyons, March 24, 1863. Copy enclosed in Hammond to Admiralty, March 28. Cf. Lord Newton, Lord Lyons, Vol. I, p. 98. Russell to Lyons, March 14th.

76 State Department, MS. Circulars, Vol. I, pp. 218-221.

77 See E. D. Adams, Great Britain and the American Civil War, Vol. II, Ch. X III, and the closing pages of the writer's article in the American Historical Review, October, 1928.

78 Adm. 1/5850. Hammond to Admiralty, March 28, 1863, and enclosure.

79 Adm. 1/5851. Cowley to Russell. April 4,1863. Copy in Hammond to Admiralty,April 11th.